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TLAW01 - Obtaining Consent
Tort of Battery *i.e. trespass to the person *committed by an intentional contact (i.e. voluntary act) with another person’s body without consent Action of Battery *action serves a dual purpose affording protection to the individual against **bodily harm **interference that is offensive to a reasonable sense of honour and dignity *the plaintiff does not necessarily have to be conscious during the contact **e.g. abused under anaesthetic *not necessary to prove a resulting injury as it is still a failure to respect bodily integrity Consent *is a defence to an action in battery *must be obtained prior to commencement of any treatment, procedure or provision of personal care *failure to obtain consent may result in legal liability Criminal Aspects *can crossover with crime of assault when intentional touching of another without consent occurs *often refers to any contact with a patient’s breast or genitalia without consent = indecent assault *may lead to suspension or de-registration Legal Consent *to obtain valid legal consent, 3 requirements must be satisfied *the patient must: #''have capacity to consent'' #''be adequately informed'' #''consent voluntarily'' 1. Capacity to Consent *individual must be able to understand information which is of importance in coming to a decision **including consequences of having, or foregoing, the proposed treatment *must also be able to use information to reach the decision and communicate it *legal presumption that an adult person is competent to consent or refuse a treatment Legal Incompetence *legally incompetent patients include: **minors = under 18 years of age **adults with mental illnesses **adults with intellectual disabilities **adults with senility **unconscious patients ***temporary or permanent *when a person lacks capacity, valid legal consent must be obtained form an appropriate substitute decision maker **person responsible or legally appointed guardian Exceptions *consent can be waived in emergencies 2. Adequate Information *patient must be informed for the specific act to be performed *to avoid tort of battery = provide nature, purpose and intended effects of treatment *although not necessary for valid legal consent, to avoid negligence as well = risk disclosure 3. Voluntary Consent *consent must be given freely and voluntarily without any coercion *pressure or coercion may be exerted by partners, family members, friends and healthcare professionals *can be difficult especially in cases where patient believes that refusal of the medical intervention may have adverse consequences **e.g. future treatment will be compromised or not provided *validity of consent will also be questionable if patient is affected by drugs, alcohol or is severely stressed Waiver of Legal Obligation to Obtain Patient Consent Emergency Situations *common law *emergency exception is only applied when life saving procedures are administered to avoid a serious and imminent threat to a patient’s life *if a relative of friend claims to have knowledge of the wishes or authority to consent for the unconscious patient, legal advice should be sought Necessity *lack of consent may be justified if both: **must be necessary to act when it is not practicable to communicate with the assisted person **the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person Written vs Verbal Consent *consent may be given expressly either orally or in writing, or a combination *there is no legal requirement for consent to be written however it is common practice for hospitals to require patients sign consent forms Implied Consent *may be implied by acquiescence **provided that the patient understands the nature and effects of the proposed intervention *however problems are likely to arise out of such situations **advisable to obtain oral or written consent and record in clinical notes Choosing to not be Informed *difficult as patient does have the right *doctor should insist the patient be provided with basic description and if not, unwillingness to be advised is to be recorded in the patient’s medical record Withdrawal of Consent *every individual has the right to withdraw consent and failure to respect these a competent person’s wishes will constitute battery